RULING ON SEARCH COMES TOO LATE FOR PROSECUTION

SAYRE -- A recent ruling by the Oklahoma Court of Criminal Appeals is too
late to help prosecute one drug defendant, but it could be useful if a
co-defendant is brought to trial. James Paul and Melvyn Patterson were
stopped on a traffic violation by Elk City police in May 2001. A
drug-detecting dog alerted officers to the car's trunk, where officers
found 164 pounds of marijuana.

Paul was brought to trial on a drug-trafficking charge in May in Beckham
County. After prosecutors presented their case, Associate District Judge
Joe Jackson ruled the search was illegal and dismissed the case.

"The effect of that is, once the trial started, jeopardy was attached and I
can't refile (the case)," Assistant District Attorney Lisa Birdwell said.

Birdwell appealed the "question of law," even though Paul could not be
retried. Last week, the state Court of Criminal Appeals overruled the trial
judge and said the search was legal.

"I posed two questions to the Court of Criminal Appeals," Birdwell said.
"Does the alert of a drug dog give officers probable cause to search a
vehicle stopped for a traffic violation on a highway without a search
warrant? And, second, is an officer who has probable cause ... required to
obtain a search warrant to search the vehicle?"

The appeals court said the dog's alert does provide probable cause, and the
officer does not need a warrant.

A defendant can't be retried when his case is dismissed after a jury has
been seated. But Birdwell said she doesn't think that has anything to do
with Patterson, who failed to show for a court hearing in March and is not
in state custody.

In the appeals court's ruling, Judge Charles Chapel wrote that the officer
had a right to prolong the traffic stop because of suspicions raised by
inconsistent statements about destination and questionable proof of
ownership or authority to operate the vehicle.